In disputes with misbehaving companies, communities have successfully turned to environmental litigation. But there are limitations.
In an historic moment for global climate governance, the International Court of Justice (ICJ) is currently hearing a landmark case that could have enormous implications for climate action.
The "World Court's" advisory opinion seeks to clarify states' legal obligations with respect to climate change. Although the questions it is answering are very broad - as its ruling is also likely to be - its response could profoundly influence climate policy and cement the courts as a critical arbiter in environmental disputes.
This litigation underscores the growing role of judicial systems in driving climate action, particularly when political and regulatory frameworks fall short. For Africa, where environmental degradation is accelerating at an alarming rate, the case at the ICJ provides a timely reminder of courts' potential to serve as guardians of justice. For communities ravaged by environmental crimes and caught in disputes with powerful corporations and complicit governments, the legal system is becoming the last bastion of hope.
Legal successes
On the continent, environmental degradation is often rooted in weak governance, corruption, and the unchecked power of multinational corporations. Whether due to economic incentives or lack of capacity, governments frequently fail to enforce environmental regulations. This can result in contaminated water sources, loss of arable land, and toxic air pollution.
In some instances, courts have emerged as a crucial avenue for seeking justice. Through legal cases, communities can challenge environmental violations and demand accountability. If successful, courts may impose fines against offenders, mandate reparations, and even issue injunctions to halt harmful activities.
These cases can send a strong message that environmental violations will not go unpunished. Particularly in African countries with under-resourced regulatory frameworks, the judiciary can fill gaps by enforcing compliance.
There have been numerous inspiring instances of courts holding corporations accountable in different ways recently.
In Nigeria, for instance, Royal Dutch Shell was finally found responsible for environmental devastation caused by oil pipeline spills in a 2021 verdict. The court in the Netherlands that made the ruling ordered the oil company to pay compensation to affected farmers in the Niger Delta and engage in clean-up efforts.
In Kenya, the National Environmental Tribunal's 2019 decision to revoke the license for a proposed coal plant in Lamu highlighted the role of legal processes in preventing ecological disasters. The tribunal determined the project's environmental impact assessment to be inadequate and emphasised the need to protect local livelihoods and the UNESCO World Heritage site over corporate interests.
In South Africa, the judiciary's recent suspension of Shell's seismic surveys along the Wild Coast showcased its ability to uphold environmental and community rights. In its decision, the court cited insufficient consultation with affected populations and the risk to marine ecosystems.
The limitations of environmental litigation
Globally, environmental degradation tends to be driven by the pursuit of profit and greed. In this endeavour, corporations cut corners to maximise their earnings. One of the ways that courts can deter these violations is by targeting corporate finances through hefty fines, reparations, and operation shutdowns. Especially when there are few alternative options, communities can turn to litigation to confront corporate greed and state neglect to drive systemic change.
Environmental litigation, however, is not without setbacks and hurdles. Judicial proceedings can be expensive, time-consuming, and inaccessible to marginalised communities who don't have legal expertise or resources to pay for legal services.
Judicial independence is also not guaranteed. In some African countries, political interference or weak institutions undermine the ability of courts to deliver fair judgments.
Moreover, even when rulings favour communities, enforcement remains a critical challenge. Powerful corporations may exploit legal loopholes or use their financial clout to delay compliance.
Litigation is also not a panacea. Court cases can address immediate grievances, but long-term environmental justice requires robust frameworks. Many African countries lack comprehensive environmental laws. Where these laws exist, there are glaring inconsistencies in how they are enforced.
Alongside judicial strategies therefore, communities must advocate for legislation that enforces stringent environmental standards, mandates corporate accountability, and guarantees access to justice for all.
South Africa is an instructive example with its right to a healthy environment enshrined in the constitution. The country's National Environmental Management Act (NEMA) empowers citizens to challenge environmental harm in court. In 2017, the Constitutional Court ruled that mining companies could not operate on private land without the landowner's consent, reinforcing community land rights and setting a precedent for other jurisdictions.
Building momentum
The growing use of litigation to combat environmental challenges offers hope, but several steps need to be taken to build on this momentum.
Foremost, there is a need to build the capacity of communities by providing them with legal knowledge and resources to pursue justice. This could be done through partnerships with civil society organisations and legal aid initiatives to bridge gaps in expertise and representation.
Equally important is judicial training for judges to equip them with specialised knowledge in environmental law. This can strengthen their ability to adjudicate complex cases involving ecological and scientific considerations.
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Another critical piece of the jigsaw is legislative reforms. African governments must urgently enact and enforce environmental laws that reflect contemporary challenges such as climate change and biodiversity loss.
Cross-border collaboration is also key. Environmental issues often transcend national boundaries and require regional cooperation. African nations can benefit from sharing best practices and harmonising legal standards to address transnational environmental challenges.
Finally, public awareness campaigns can highlight successful legal cases as a way to inspire other communities to engage litigation to demand environmental accountability.
No country can go wrong with strong communities and robust institutions. The best way to deal with environmental harm is by empowering communities and strengthening institutions.
As the ICJ case unfolds, it reminds us of the judiciary's potential to drive the societal change that prioritises environmental protection. African communities must seize this moment and use every available legal tool to safeguard their land, water, and air for the present moment and generations to come.
Karabo Mokgonyana is a lawyer and the Renewable Energy Campaigner at Power Shift Africa.
